Protecting child claimants from “fortune hunters and thieves”

11 November 2010 by Matthew Hill

Updated | JXF (a child) v York Hospitals NHS Foundation Trust [2010] EWHC 2800 (QB) – Read judgment

Mr Justice Tugendhat has held that the High Court should withhold the identity of a child claimant when approving the settlement of a clinical negligence case.  The decision represents a restatement of the orthodox principle that cases should be heard in public and reported without restrictions, and that anonymity orders should only be granted after careful scrutiny.

His reason for coming to this particular decision was that revealing the name of the claimant would “make him vulnerable to losing the [settlement] money to fortune hunters or thieves.”

The claimant, JXF, was injured as a result of clinical negligence. The claim was settled and court approval was sought under CPR r.21.10 as JXF was a child. As it was anticipated that JXF would require care for the rest of his life, the value of the settlement was substantial. However, it was also expected that JXF would be of full capacity when he reached the age of 18, at which point he would be able to demand payment of all the remaining money. Further, he would be able to participate in normal social life. It was argued that these factors meant that he would be particularly vulnerable to financial exploitation, more so than child claimants who would never attain full capacity and would always receive the protection of the Court and carers.

The judge granted the unopposed application made on behalf of JXF for an anonymity order, but did so for a very tightly defined reasons:

[11] One of the purposes of these proceedings for approval is …. to ensure that the money paid to the claimant is looked after and wisely applied. If the naming of a claimant will make him vulnerable to losing the money to fortune hunters or thieves, then it follows that the purpose of the approval hearing will be defeated…

“[30] I concluded that in the present case naming the claimant would create the risk that the purpose of the approval hearing would be defeated, for the reason given [above].

This judgment will be significant whenever a child claimant who is likely to attain capacity seeks anonymity in respect of a substantial settlement. However, Tugendhat J sought to limit its wider impact, and to ensure that courts considering anonymity applications did so carefully and methodically.

Mr Justice Tugendhat drew on the recent Supreme Court case In re Guardian News and Media Ltd [2010] UKSC 1 (“Guardian”), from which he extracted the following principles and observations:

• The general principle was that cases should be held in open court, for the reasons given in R v Legal Aid Board, ex p Kaim Todner [1999] QB 966 (977 per Lord Woolf MR). These included: the need for scrutiny of the courts, the maintenance of public confidence in the administration of justice, the possibility that publicity will lead to further evidence, and lessening the likelihood of uninformed or inaccurate comments about the proceedings.
• The general principle and the reasons behind it are applicable to personal injury proceedings as to other cases. For example, publicity is an important means by which exaggerated claims can be detected and deterred.
• Anonymity orders have increased in number in recent years. They had often been granted with the consent of all parties and without detailed consideration by the Courts.
• This increase has occurred despite the important warning that: “when both sides agreed that information should be kept from the public, that was when the court had to be most vigilant” [R v Westminster City Council, ex p P (1998) 31 HLR 154, 163 per Sir Christopher Staughton]
• When addressing any application for anonymity, a court should undertake a careful consideration of the competing rights under Article 8 and Article 10 ECHR, balancing the applicant’s right to private and family life against the right to freedom of expression. A court should first ask whether, on the facts before it, Article 8 was engaged. If so, it should then consider whether there was sufficient general, public interest in publishing a report of the proceedings which identified the applicant to justify any resulting curtailment of his and his family’s right to respect for their family and private lives.
• Although irresponsible and intrusive reporting was often presented as an argument for granting anonymity, “the possibility of some sectors of the press abusing their freedom to report cannot, of itself, be a sufficient reason for curtailing that freedom for all members of the press.” [Guardian, [72] per Lord Rodger]

He also referred to two post-Guardian cases in which Northern Irish courts had considered anonymity claims in medical matters. In A (A Minor) & Others v A Health and Social Services Trust [2010] NIQB 108, a case on which Alasdair Henderson wrote, the court upheld the application in respect of a family into which two children with different skin colours were born as a result of IVF treatment. Tugendhat J noted that this was a “highly unusual” claim in which the application had been given careful consideration. In R A, Re Judicial Review [2010] NIQB 27, the desired extension to an anonymity order was refused on the grounds that the applicant’s name had been disclosed earlier in proceedings. Tugendhat J again praised the detailed consideration given by the court, commenting that it was rarely found in cases that pre-dated Guardian.

Turning to the case before him, the judge held that there were factors that engaged Article 8 by exposing JXF to a risk of interference with his private life. However, it appears that these alone would not have outweighed the general public interest in reporting:

I regard these factors as weak in this case. The size of awards of compensation is private information, but it is information of a kind that is very commonly reported, and the reports serve a useful function in keeping the public informed. The family’s concern about media intrusion is genuine, but there is nothing wrong with responsible reporting. There is no evidence in this case to give rise to a reasonable fear that there would be any other kind of reporting. A stronger point may be that the claimant has an awareness of his condition that makes him more sensitive to publicity than some other claimants would. But there is little explanation in the evidence of how significant that sensitivity may be.

Ultimately, it was the risk that the purpose of the approval hearing would be defeated that led to the anonymity order being made.

Despite this outcome, the judgment as a whole can be viewed as authority for the traditional position that anonymity orders are very much the exception and not the rule, and should only be granted following careful scrutiny. In this it is consistent not only with Guardian, but also with Tugendhat J’s own near contemporaneous ruling in JIH v News Group Newspapers ([2010] EWHC 2818 (QB), (the subject of an article by Mark Thompson of the media law blog, Inforrm). Quoting Lord Woolf MR in Kaim Todner, Tugendhat J indicated why such restatement of orthodoxy was, in his view, necessary:

The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases.

Update, 11 November 2010 – In a case decided since the JXF ruling, the High Court have upheld an application for an anonymity order in respect of a child claimant, and the decision may have cast a different light on the JXF case.

This decision, made by Sir Charles Gray, referred to s.39(1)(a) of the Children and Young Persons Act 1933. This provides (among other things) that: “In relation to any proceedings in any court, the court may direct that … no newspaper report of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings.” A full case report will follow once the final judgment has been published.

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